judicial precedent flashcards

Question 1

what is judicial precedent?

Answer 1

case law/judge made law

Question 2

what is judicial precedent based on?

Answer 2

the principle of stare decisis

Question 3

what is stare decisis?

Answer 3

to stand by what has been decided/let similar cases be decided in a similar way

Question 4

what is a precedent?

Answer 4

precedents are decisions made on a point of law by senior courts that must be followed by lower courts

Question 5

what is the order of hierarchy in civil?

Answer 5

-supreme court
-court of appeal
-divisional court (chancery and family)
-high court
-county court

Question 6

what is the order of hierarchy in criminal?

Answer 6

-supreme court
-court of appeal
-divisional court (kings bench)
-crown court
-mags court

Question 7

what are law reports?

Answer 7

decisions made by judges at the end of a case

Question 8

what are 3 ways that the judgement is split?

Answer 8

-ratio decidendi
-obiter dicta
-verdict

Question 9

what does ratio decidendi mean?

Answer 9

reason for deciding

Question 10

what does obiter dicta mean?

Answer 10

other things said

Question 11

what kind of precedent is ratio decidendi? what is the case for this?

Answer 11

-binding precedent
-R v Howe

Question 12

what kind of precedent is obiter dicta? what is the case for this?

Answer 12

-persuasive precedent
-R v Gotts

Question 13

what are the 3 types of precedent?

Answer 13

-binding precedent
-persuasive precedent
-original precedent

Question 14

what is an original precedent? what is the case example?

Answer 14

-judges decision on a brand new point of law
-donoghue v stevenson (created negligence)

Question 15

what is a binding precedent? what is the case for this?

Answer 15

-the ratio decidendi of a case must be followed in the next case in a lower court
-Grant v Australian Knitting Mills

Question 16

what is a persuasive precedent? what is the case for this?

Answer 16

-a decision from court that lower courts do not have to follow but can if they want
-R v R

Question 17

what is the source of persuasive precedent?

Answer 17

ratio decidendi of lower courts

Question 18

what are the sources of persuasive precedents?

Answer 18

-ratio decidendi of lower courts
-privy council decisions
-obiter dicta
-dissenting judgements
-decisions in other countries

Question 19

what does London street tramways v london county council say?

Answer 19

that the house of lords (supreme court) is bound by its own decisions, to ensure certainty in law

Question 20

what does the practice statement 1966 say?

Answer 20

that the supreme court can overrule past decisions ‘when is appears right to do so’

Question 21

what does Jones v Sec. of state for social services say

Answer 21

certainty is the most important feature of a precedent

Question 22

which cases were the first major use of the practice statement in a civil case?

Answer 22

Herrington v Brb overruled Addie v Dumbreck

Question 23

what did Addie v Dumbreck set out?

Answer 23

that the court realised it needed to update the law

Question 24

what cases were the first major use of the practice statement in a criminal case?

Answer 24

R v Shivpuri overruled Anderton v Ryan

Question 25

what did Anderton v Ryan set out?

Answer 25

the court realised it needed to correct the law

Question 26

who are the civil and criminal courts bound by?

Answer 26

they are not bound by each other, however they are bound by themselves

Question 27

what are the 3 exceptions of the courts being bound by themselves? what is the case for this?

Answer 27

-Young v Bristol Aeroplane Co -1 two conflicting court of appeal precedents -2 later conflicting supreme court precedent -3 precedent made per incuriam

Question 28

what is the one additional rule for exceptions of the courts being bound by themselves but only in the criminal court?

Answer 28

-R v Taylor -if the law has been 'misapplied or misunderstood'

Question 29

what are the 3 ways of avoiding precedent?

Answer 29

-overruling -distinguishing -reversing

Question 30

what is overruling? what is the case for it?

Answer 30

-when a higher court decides that a precedent of an earlier case in a lower court on the same point of law is wrong or outdated -r v shivpuri

Question 31

what is distinguishing? what is the case for it?

Answer 31

-when the court decides that the facts from an earlier case are so different that they are not bound by it -balfour v balfour distinguishes merritt v merritt

Question 32

what is reversing? what is the case for it?

Answer 32

-a point. of law from a lower court goes to a higher court and the court decides to change it bc they think it is wrong -r v hasan